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Supreme Court rules Named Person scheme “unlawful”

Posted on 28th July 2016 at 4:15 pm

Earlier today, the Supreme Court ruled that the Scottish Government’s Named Person scheme (the scheme) is illegal. This is an important judgment as it is the first time that the Supreme Court has exercised its power to prevent a major piece of passed Scottish legislation (especially as it was passed by the Scottish Parliament without opposition with 103 yes votes).

For the short version read our blog below to find out what the Named Person scheme is, what the Supreme Court said and what will happen to the scheme.

What is the Named Person scheme?

The scheme is part of the Scottish Government’s (SG) Children and Young People (Scotland) 2014 Act (the Act), whereby health boards and Scottish local authorities are required to assign a “named person” to each child and young person in Scotland. Until the events of this morning, the scheme was on track to take effect from 31 August.

Why was Named Person scheme before the court?

Who?

Four registered charities and three individual parents challenged the Act by means of judicial review. The appellants’ first and second attempts were unsuccessful with both the Outer House and the Inner House of the Court of Session dismissing their challenge, nonetheless their final attempt, by way of appeal to the Supreme Court, has been successful.

What?

In particular, the appellants challenged Part 4 of the Act which sets out the functions of named persons and the powers and duties of named persons in relation to data sharing. The appellants argued that Part 4 was outside SG’s legislative competence on three basis:

it relates to reserved matters;

it is incompatible with the right to private and family life (Article 8 of the European Convention on Human Rights (ECHR)); and

it is incompatible with EU law generally.

What did the Supreme Court say?

The Supreme Court allowed the appeal and in particular, it held:

that Part 4 does not relate to a reserved matter – the court noted that Part 4 does not detract from the data protection regime enshrined in the Data Protection Act 1998 (which is UK wide law) and the associated European Directive;

that Part 4 is not in accordance with Article 8 the ECHR – the court felt the operation of Part 4 would lack the required safeguards to enable adequate examination of whether access to private information would be proportionate (although it noted that the Act itself could be proportionate); and

there is no incompatibility issue with EU law (other than in relation to the ECHR challenge).

What happens now?

Part 4 cannot come into force as is currently drafted and judicially, this is the end of the line for SG as a Supreme Court’s decision cannot be appealed.

The Supreme Court note that the Scottish Parliament will have the opportunity to address the issues raised in its judgement. Therefore, the Named Person scheme is not completely out of the picture and merely requires revisiting and alteration by SG.

The Supreme Court only upheld one challenge out of three, therefore, it should not be overly difficult for SG to fix the ‘bugs’ within their Named Person scheme to ensure its survival. Indeed, the Supreme Court have noted that it is “undoubtable [that the Act] pursues legitimate policy aims and is clearly rationally connected with those aims” providing that the Act itself could be deemed proportionate. On this basis it may be argued that it won’t take much in the way of amendment to ensure that the operation of the practices under Part 4 are also deemed proportionate.

Earlier today, Deputy First Minister John Swinney tweeted: “Bid to scrap #NamedPerson via Supreme Court fails. Ruling means policy goes ahead. SG will clarify info-sharing in statute & implement asap” indicating that SG will make the required amendments. This was confirmed by SG this morning via a press release which includes the following quote by Swinney: “Ministers remain absolutely committed to the named person policy.”

Author

Val Surgenor is a Partner in our IP, Technology & Commercial team and has over 15 years’ experience in advising on data protection and, since its introduction, the Freedom of Information (Scotland) Act 2002 (FOISA).

Primarily involved in non-contentious IP and information technology, Val advises private companies and other private/public/third sector organisations and institutions, as well as individuals, on a wide range of commercial matters, including commercial contracts, patents, trademarks, design rights, copyright and other intellectual property licensing, transfer, commercialisation and protection of IP, computer technology contracts, including hosting and cloud arrangements, and commercial agreements.

Val is one of the few Scottish lawyers recognised by Chambers UK as a “Leader in the Field” of data protection and is listed in Who’s Who Legal 2018 as an expert in Data Privacy & Protection. She was also Chair of the Scottish Fundraising Implementation Group, tasked by the Scottish Government with the establishment of the Independent Fundraising Standards and Adjudications Panel for Scotland, and is now one of the Independent Panel’s members.

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